The Taking Issue - PowerPoint PPT Presentation

The Taking Issue. Lecture Series 3 John Keller – Plan 752 Planning Law. Introduction to Takings. The First Period – Pre 1856 The general legal conception is that no taking can occur without a touching A touching is a physical invasion on to private property by the government.

Copyright Complaint Adult Content Flag as Inappropriate

I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.

Download Presentation

PowerPoint Slideshow about ' The Taking Issue' - esme

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.

City of Boston passes a law in 1847 that prohibits the erection of a wharf into the Boston harbor unless it is less than 100 feet. The harbor was nearly impassible by this time because of wharf’s projecting far out into the navigation area

Alger brings suit under the theory that this constitutes a restraint of free trade and deprives them of the opportunity to use their property to the fullest. Their allegation is that a restraint of trade is the same thing as the government divesting them of all or part of the title to their property

This is a just restraint of an injurious use. Government uses eminent domain to appropriate property to a private use and the police power to prevent injury to the public interest. This is not an appropriation of property but a restraint.

Judicial thinking remain much the same until after the turn of the Century

In order to find a taking – government must constitute some sort of physical invasion of private property. If government enacted a regulation to protect the public from an injurious use – it was not more than a mere regulation.

In 1871 the U.S. Army Engineers erected a dyke along a one side of a river.to protect a fort from flooding. This caused the adjacent field to flood more often than was normal. Pumpelly sued under the theory that the government had taken his land as a water storage basin

The court found that in the strict sense of the law the property was not taken by the government. However, the floodwater, which normally inundated the fort was diverted to the owner’s land and this, in reality constitutes a physical invasion or a touching – and thus a taking that must be compensated

In 1880 Kansas passed a constitutional amendment that forbade the manufacture of alcohol. Mugler owned a distillery in Salina, Kansas constructed in 1887and was ordered to cease operations. Mugler sued under the theory that the State had deprived him of all value of his land and the $10,000 he had paid for the manufacturing operation

The prohibition by the State of Kansas, in its Constitution and laws, of the manufacture or sale within the limits of the State of intoxicating liquors for general use there as a beverage, is fairly adapted to the end of protecting the community against the evils which result from excessive use of ardent spirits; and is not subject to the objection that, under the guise of police regulations, the State is aiming to deprive the citizen of his constitutional rights.

A prohibition upon the use of property for purposes that are declared by valid legislation to be injurious to the health, morals or safety of the community, is not an appropriation of property for the public benefit, in the sense in which a taking of property by the exercise of the State's power of eminent domain is such a taking or appropriation.

The destruction of a property right, in the exercise of the police power of the State,in violation of law,is not a taking of property for public use, and does not deprive the owner of it without due process of law.

A Penn statute forbids the removal of the coal support estate under any land used for a residence, cemetery, school, public building, town, or factory

Mahon had purchased the home from an individual who had sold the mineral and supports rights to Penn Coal. Mahon purchased the property with full knowledge that the support right had passed to Penn Coal

Government could hardly go on if to some extent values incidental to property could not be diminished without paying for every such change. Some values are enjoyed under an implied limitation and must yield to the police power. But obviously,the implied limitation must have its limits or the right of contract and the due process clause are gone

“A 55 story office building above a flamboyant Beaux-Arts façade cannot be divorced from the setting.” The Landmarks Commission designates a number of other properties owned by Penn. Central as receiving zones

Penn. Central argues that they are losing money on the operation of the terminal and need to income from the lease to turn a profit.

The Terminal is a valuable property interest,They urge that the Landmarks Law has deprived them of any gainful use of their "air rights" above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has "taken" their right to this superjacent airspace, thus entitling them to "just compensation" measured by the fair market value of these air rights.

Nothing the Commission has said or done suggests an intention to prohibit ay construction above the Terminal. The Commission's report emphasized that whether any construction would be allowed depended upon whether the proposed addition "would harmonize in scale, material, and character with the terminal.” Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal.

Although appellants and others have argued that New York City's transferable development rights program is far from ideal, The New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have constituted "just compensation" if a "taking" had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation.

On this record, we conclude that the application of New York City's Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare, and not only permit reasonable beneficial use of the landmark site, but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties.

On appeal the court determined that the law requires that a landlord allow both crossover and non-crossover connection. The owner would be compensated for non-crossover connections only. The court did not determine if $1 was adequate compensation. They said the law was necessary in a era of rapidly growing communications

In short, when the "character of the governmental action," is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimum economic impact on the owner

Teleprompter's cable installation on appellant's building constitutes a taking under the traditional test. The installation involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building's exterior wall. In light of our analysis, we find no constitutional difference between a crossover and a noncrossover installation. The portions of the installation necessary for both crossovers and noncrossovers permanently appropriate appellant's property. Accordingly, each type of installation is a taking.

In 954 the township passes a zoning amendment that forbids the establishment of any new use, or the expansion of an existing use, in the Troy Meadows except for an agricultural type use. The law also forbade the filling of the wetlands

the two main and practical effect of retaining the meadows in their natural interrelated aspects are: first, a detention basin in aid of flood control in the lower reaches of the Passaic Valley far beyond this municipality; and second, preservation of the land as open space for the benefits which would accrue to the local public from an undeveloped use such as that of a nature refuge by the Wildlife Preserve This prime public, rather than private, utilization can be clearly implied from the purpose sections of the zone regulations

We are in danger of forgetting that a strong public desire to improve is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." While the issue of regulation as against taking is always a matter of degree, there can be no question but that the line has been crossed where the purpose and practical effect of the regulation is to appropriate private property for a flood water detention basin or open space.

The court found that clearly the police power is sufficient to prevent the filling of the marsh and that the power was properly exercised by the state

“The action of the State Board did not depreciate the value of the wetland. Its value was the same after the denial of the permit. All traditional uses of the wetland remain. In other words, if you pay swamp prices you get swamp uses. The owner has no absolute right to change the essential character of the land for a purpose to which it is unsuited

In 1957 the First Evangelical Lutheran Church purchases21-acre parcel of land in a canyon along the banks of the Middle Fork of Mill creek in the Angeles National Forest. This land is a natural drainage channel for the watershed area owned by the National Forest service.

July 1977, a forest fire destroys approximately 3,860 acres of the watershed area, creating a serious flood hazard. February 1978 a flood occurs and the runoff from the storm floods the land where Lutherglen sits and destroys all of its buildings.

As Justice Holmes aptly noted more than 50 years ago, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change

The Nollans own a beachfront property in Ventura County California. ¼ mile north of the property is the Faria County Park (an Oceanside public beach and recreation area). Another public beach known locally as the “Cove” is located approximately 1,800 ft to the south of the property. An 8ft high sea wall divides the lot from the beach portion of the lot. At the time a 504 sq ft bungalow existed on the property and was used to rent out to vacationers

Commission recommended permit upon the condition that they allow a public easement on the portion of their property bordered on one side by the 8ft sea wall and on the other by the mean high tide line. Essentially allowing a lateral easement for the public to pass through their property.

Nollans protested the condition but the California Coastal Commission overruled and granted the permit pending the Nollans obtain recordation of a deed restriction granting the easement

California Coastal Commission appeals to the California Court of Appeals. Court of appeals finds in favor of the California Coastal Commission sighting that if the project creates a need for public access and condition was related to burdens created by the project the condition would be constitutional.

Court found that a “permit condition is not a taking if it serves the same legitimate governmental purpose that a refusal to issue the permit would serve” (Mandelker 2003).

However, it is unclear how allowing a lateral access will lower the “psychological barrier” imposed by the new development and or how it helps to alleviate congestion in the two near by public beaches. It is further unclear as to how the access will help reduce the viewing of the public beach.

In a sense there was not found to be a “nexus” between the California Coastal Commissions arguments and the intended purpose of the condition.

Court agrees with the commission that the comprehensive coastal access proposed by the California Coastal Commission is a good idea, however they will have to compensate the Nollans if they want the easement.

The court’s reasoning was that “when a regulation respecting the use of property is designed to prevent serious public harm, no compensation is owing under the Takings Clause regardless of the regulation’s effect on the property’s value”

Two justices dissented because “they would not have characterized the Beachfront Management Act’s primary purpose as the prevention of a nuisance”

“To the dissenters, the chief purposes of the legislation, among them the promotion of tourism and the creation of a habitat for indigenous flora and fauna, could not fairly be compared to nuisance abatement”

The court decided that the case was ripe because it was filed before the amendment to the Act in 1990

The State Supreme Court erred in applying the noxious uses principle

Tie in to previous case law

In Pennsylvania Coal v. Mahon, 260 U.S. 413, “if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits”

After a comprehensive study the City adopted and plan to enhance the drainage of the town and to relieve congestion in the main part of town by connecting new bike paths

The City requires that new development in the CBD dedicate space for the new bike/walkway and also contribute to the drainage system (and also enhance the appearance of Fanno Creek and as greenway system)

The Commission required that Dolan dedicate the portion of her property lying within the 100 year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15 foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway. The dedication required by that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city's zoning scheme.

Dolan appealed to the Land Use Board of Appeals (LUBA) on the ground that the city's dedication requirements were not related to the proposed development, and, therefore, those requirements constituted an uncompensated taking of their property under the Fifth Amendment. In evaluating the federal taking claim, LUBA assumed that the city's findings about the impacts of the proposed development were supported by substantial evidence.

Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred.

Petitioner does not quarrel with the city's authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. She argues that the city has identified no special benefits conferred on her, and has not identified any special quantifiable burdens created by her new store that would justify the particular dedications required from her which are not required from the public at large.

Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100year floodplain. Petitioner proposes to double the size of her retail store and to pave her new gravel parking lot, thereby expanding the impervious surface on the property and increasing the amount of storm water runoff into Fanno Creek.

The second part of our analysis requires us to deter-mine whether the degree of the exactions demanded by the city's permit conditions bear the required relationship to the projected impact of petitioner's proposed development.

We conclude that the findings upon which the city relies do not show the required reasonable relationship between the required floodplain and the petitioner’s new building. The same may be said for the need for the bike path

Benchmark challenged the condition with and sought damages from the City for a taking. The trial court ruled that that studies conclusively showed that there was no substantial impact from the new subdivision on traffic that would warrant the new half street improvement

Case is dismissed by the District Court but reversed by the Appeal Ct. and returned for re-hearing

District Court grants JURY trial – How could the City ask for 2/3 of the tract to be set aside for literally public purposes and then turn around and deny the application because of the outcome of its own actions?

Although a landowner may not establish a taking before the land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation, once it becomes clear that the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. Here, the Council’s decisions make plain that it interpreted its regulations to bar petitioner from engaging in any filling or development on the wetlands. Further permit applications were not necessary to establish this point.

The State Supreme Court did not err in finding that petitioner failed to establish a deprivation of all economic use, for it is undisputed that his parcel retains significant development value. Petitioner is correct that, assuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest. This is not the situation in this case, however. A regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property “economically idle.”

As already noted the Supreme Court refused to declare the moratorium a per se categorical taking. It will depend on the moves and counter moves of the parties and a “Penn. Central Style Analysis” will be used

The lot owners are going to be ticked off because they wanted a “fairness and justice” analysis like Del Monte Dunes